Right to Repair: Looking for Common Ground
Prior to the Commonwealth of Massachusetts passing Right to Repair in 2012, on the heels of an 86 to 14 vote by its citizens, automakers entered into a memorandum of understanding with independent repair shops across the country. The crux of this memorandum was that the automakers would grant independent repair shops the same data access as dealerships at a reasonable price compared to the OE dealers and in a standardized format. Muddying the water, however, was the introduction of telematics, which happened midstream. It was the one thing missing from the memorandum and its implications weren’t fully understood by advocates for independent repair shops.
Today, the debate over telematics access has the aftermarket and automakers in a seventh judicial delay in November. The automakers say they cannot follow the rules for providing independent repair shops equal access to this vehicle data, citing security concerns regarding independent repair shops. It’s an issue Bill Hanvey, president and CEO of the Auto Care Association (ACA) and Bob Redding, the Automotive Service Association’s Washington, D.C. representative have spent the past decade trying to resolve.
For starters, the automotive aftermarket is a $400 billion-plus industry that employs upwards of 4.5 million people, says Hanvey. He and Redding hope to work with automakers to find that middle ground where the automotive aftermarket and OEMs serve customers together with dealerships and independent repair shops being granted similar data access. Hanvey says on an industry level, that begins with everyone getting involved.
“It's really important for our industry to raise their voice. We're not necessarily going to be able to outspend the automakers, but we certainly can mobilize more employees and we actually have more employees on the auto care side than they do on the automaker side and the dealership side combined," Hanvey says.
“We knew at the time that if we included that telematics data into the memorandum of understanding we would get nowhere. So, we signed the memorandum of understanding, knowing that we would have to come back eventually and acquire the same access for telematics data as we did for the data that was acquired through the OBD-II port."
If anything, the automotive aftermarket has been adaptable to new technology and has displayed a track record of excellence, improving upon many OE designs, attests Hanvey. He believes these successes show why automakers should find sharing information with the automotive aftermarket advantageous, adding that access is critical to the future of independent repair shops.
“Our industry has always embraced technology. And as the vehicle became more sophisticated, and as more diagnostics were being made available through the OBD-II port, we found it necessary to ensure the future of our industry by guaranteeing that we would have the same type of access at the same type of price through the OBD port for repair and maintenance data that the OE dealerships got,” Hanvey says.
The auto care industry prefers to be seen as a collaborative service partner alongside automakers and dealerships, however, continual failures in agreeance between the parties—“stonewalling,” according to Hanvey—sent the representatives of the automotive aftermarket back to Massachusetts voters for a second time. The ballot question this time sought to inform consumers that a vote to approve Right to Repair would 1) give them the ability to choose where they could have their vehicle repaired, 2) control who could access their telematics data, 3) make new car owners aware at the time purchase that their data was being sent to the automaker. It also required a standardized open data platform to access telematics from model year 2022, which OEMs felt was a cybersecurity concern without proper boundaries in place.
Massachusetts voters approved by a 75 to 25 margin.
“Ultimately, we had to go back to Massachusetts,” says Hanvey. “[And] we did not lose a county in Massachusetts and immediately following the ballot question and the victory in Massachusetts, we reached out to the automakers and asked them to come to the table so that we could figure out an implementation plan. The ballot question called for implementation of the Right to Repair for model years 2022.”
Feeling like they couldn't comply with the ruling, the automakers filed a lawsuit against the Commonwealth of Massachusetts.
"They said No. 1 that there was federal preemption. In other words, there were federal laws in place that superseded the law that was passed in Massachusetts. No. 2, they also said that the 2022 implementation date was an impossibility for them to adhere to,” says Hanvey.
This sent both sides back to trial in June of 2021 with the attorney general of Massachusetts defending the case this time. The Auto Care Association does, however, continue to work with the attorney general’s office.
“Since the trial in June of 2021, the judge has delayed his verdict or his ruling five times now," says Hanvey at the time of this writing.
This implication of this new lawsuit is high stakes in the eyes of the automakers. Consumer data carries value beyond auto repair. Automakers believe there’s a risk that comes with sharing telematic data with the aftermarket, says Redding. Would independent repair shops use customer data for their own purposes? Hanvey doesn’t think so and has encouraged automakers to be forthright with consumers about their data.
“The car today generates 25 gigs of data each hour. And that includes everything from speed, braking, geolocation—which is a big thing—and all the way down to airbag deployment, how much you weigh, and so on. All these types of personal information are extremely valuable to the automakers and insurance companies ... that data is really gold for the automakers. Let's reiterate the fact that we are not denying them access to that, all we're asking for is that the consumers be made aware of it and that the auto care industry be granted access to the repair and maintenance data in a real-time fashion,” Hanvey says.
A Case for Optimism
As Hanvey alluded to at the beginning, the aftermarket is a necessary partner for the OEMs and the dealerships on all fronts. For the automakers to only entrust telematics and repair data to the dealerships would lead to high consumer dissatisfaction when repair times and service scheduling waits start to go from days to weeks or even months. This is especially the case when cars are past their warranty and owners would typically use independent repair shops since they present a more economical solution.
“What we've seen and what we hear is when a car comes out of warranty, we repair 70-to-80% of those depending on who you talk to. If you're a Volvo manufacturer, BMW manufacturer, or a GM manufacturer when that car goes into our shops, they’ll want our folks to be able to repair them properly for a lot of reasons,” says Redding.
For automakers, allowing independent repair shops access to telematics and OE data needed to repair cars makes sense. The automotive aftermarket is ready and has proven its willingness to adapt to changing times and undergo any necessary training as cars evolve. But OE cooperation is a necessary first step, not defiance, such as the case with Subaru in 2021, when it voluntarily disabled telematics featured in vehicles sold in Massachusetts.
“Somebody in there at some point has to have access to the OE information. So, we think we think we're going to get there and if we don't. We are very supportive of a legislative solution if there's not an industry solution, and we've shown that, but it should be at the national level,” says Redding.
One potential way of helping both find a collaborative solution is through a recently formed Vehicle Data Access Caucus, a bipartisan committee formed by Rep. Earl L. “Buddy” Carter (R-GA). The goal of this group is to put together a playbook of sorts for vehicle data privacy.
"This [caucus] will be inclusive to all parties and various views,” says Redding. “So, let’s bring the parties together. Let's figure this out because this might require a law and it might not. We know, at the end of the day, when many of these technologies are in play for the aftermarket for independent repairs, we need the data to repair them.”
He supports the end game being fully legislative.
“I think a national decision, either a new federal law or an industry agreement that covers all 50 states would be the most healthy for our members for independent shops,” says Redding.
Advocating Until Something Changes
For independent auto repair shops, this junction of Right to Repair is about their customers. Hanvey and Redding encourage owners to take time to educate customers on the power they have over their personal data and the ramifications of Right to Repair if the automakers' lawsuit is upheld by the court—the likelihood of splitting time between their favorite repair shop and a dealership, if not fully the latter.
“I think the first piece is education. You know, many vehicle owners never meet the Congressman or don't have a relationship, like getting in touch with that staff in Washington or their district staff and communicating with them and saying, ‘Look, there will be in '23 a dialogue between members of Congress over vehicle data access, and I want you Congressman X or Senator Y to be part of that’," says Redding.
Hanvey adds that consumers need to be made aware of this through the shop owner.
“It's not a quick fix. It's something that just has to continually be promoted; it needs to be continually brought forth to the consumer,” Hanvey says.
No matter the outcome, the battle will continue.
“We know either side is going to appeal this case. We find it hard to believe that the court could ignore the voice of 75% of the voters. So, we feel that we've really done our homework and the automakers' contention is well, we don't trust these folks. And you know, it's cyber secure. A dealership undergoes the same types of analysis that an independent repair shop does, they're no different. And what makes the independent shops any different than a dealership?” Hanvey says.